Another Unconstitutional Gun Grab

Source: The American Conservative

On July 29, the House of Representatives passed a bill attempting to federally ban “assault weapons.” H.R. 1808 is a 126-page bill, mostly filled with lists of firearms it intends to ban by name. In summary, the proposed law forbids “a person to import, sell, manufacture, transfer, or possess, in or affecting interstate or foreign commerce” any “semi-automatic assault weapon” and any magazine capable of holding more than 15 rounds of ammunition. The proposed law does not apply to weapons or magazines that were lawfully possessed before the passage of this bill, but does severely restrict the ability to transfer these grandfathered weapons, even if the transfer is a gift.

As a gun owner and the son of a former SWAT captain, I question the practical efficacy of these types of laws. Most conservatives probably are familiar with the basics of how guns work, but a quick review is worthwhile. The focus on banning “semi-automatic assault weapons” is interesting, because a semi-automatic gun is distinct from a fully automatic weapon where one can hold down the trigger and fire several shots. The latter is what comes to mind when I think of an “assault weapon” or “weapon of war.” Semi-automatic weapons fire one shot per trigger-pull. This does not seem to be a reasonable definition of the ever-elusive “assault weapon.” Common handguns such as 9mm handguns and even revolvers also fire one shot per trigger-pull, and can be fired fairly quickly, but they are not included as “assault weapons.” 

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The effectiveness of banning “high-capacity magazines” is likewise questionable. I believe the rationale is that a mass shooter with 30-round magazines can fire 30 shots without having to reload, so limiting magazine capacity to 15 rounds would limit the shooter’s ability to continue firing uninterrupted. But this reasoning does not lead to a drastically different result in a mass-shooter situation: even a mediocre shooter such as myself can drop an empty magazine and load a new one in a second or two. 

This is worth explaining to those in favor of bills such as H.R. 1808. If this bill became law and buyers can no longer access an AR-15 or a 30-round magazine, a potential mass shooter could do the same or similar damage with a 9mm handgun and a bunch of 10-15 round magazines. Perhaps these laws are being promoted due to ignorance of the realities of firearms. Or perhaps politicians are primarily interested in scoring political points by passing bills that look like they prevent mass shootings, even if they aren’t effective.

Chances are, this bill will die in the Senate. There is little chance that this proposal will garner any Republican support, and thankfully there seems to be no serious appetite to end the filibuster. But even if it is rather unlikely that H.R. 1808 will become law, this bill needs to be addressed for a very important reason: the U.S. House of Representative is attempting to pass a law that, after Bruen, is clearly unconstitutional.

As I wrote several weeks ago, the Court in Bruen announced the following rule: “[t]he Second Amendment protects the rights of law-abiding, adult citizens (“the People”) to keep and bear arms, particularly weapons in common use. Therefore, any law restricting that right needs to be consistent with the Nation’s ‘historical tradition of firearm regulation.’” If a law is passed that restricts the right to bear arms, the proponent of that law must demonstrate that similar types of restrictive gun laws were in place at the time the Second Amendment was ratified.

To be fair, it is reasonable to pass test laws in the wake of a monumental Supreme Court decision. After all, Bruen struck down a restrictive law requiring New York residents to demonstrate good cause before being approved for a license to carry firearms. The Bruen holding did not directly address semi-automatic rifles or “high-capacity” magazines, so it makes sense that legislatures would experiment with various gun restrictions post-Bruen to see how the Bruen test will be applied by the courts in various circumstances.

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We have good reason to believe, however, that an “assault weapons” ban such as H.R. 1808 is likely to be struck down post-Bruen. The language of Bruen itself, and particularly a little-known decision by the Supreme Court on the last day of its term in June, provide clues as to how H.R. 1808 would fare under the Court’s current Second Amendment jurisprudence.

Bruen and the gun cases before it—such as Heller and Millerarticulate that the Second Amendment protects possession and carrying of weapons “in common use” for a lawful purpose. Following this logic, progressives dare not touch 9mm handguns, pump shotguns, etc. They only claim to want to ban “weapons of war” from our streets. Despite claims that the AR-15 is substantially similar to military-grade weapons (despite the fact that the AR-15 is semi-automatic while military M4 rifles have burst-fire capabilities), the reality is the AR-15 is a civilian weapon and the most popular rifle in America. Twenty- to 30-round magazines are standard for such firearms. Despite arguments to the contrary, AR-15s are not weapons of war: they are civilian rifles in common use in America for the lawful purpose of self-defense. Therefore, it seems H.R. 1808 contains exactly the type of weapon ban Bruen deemed unconstitutional under the Second Amendment.

Supporting this analysis is a little-known case released by the Supreme Court on June 30, 2022 called Bianchi v. Frosh. This was one of many cases the Supreme Court accepted and resolved through a summary process, in which they dispose of a case in a quick, summary fashion. In Bianchi, there was a challenge to a Maryland statute banning “assault weapons,” which was very similar to H.R. 1808. The Supreme Court disposed of the case as follows: “Petition GRANTED. Judgment VACATED and case REMANDED for further consideration in light of New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. ___ (2022).” In the lower courts, the complaint of the plaintiff challenging the law was dismissed. The Supreme Court issued an opinion vacating the lower court opinion and requiring the lower court to hear the case again for further consideration, specifically in light of the Bruen decision. This does not tell us how the lower court will rule on remand, but it does signal that assault weapons bans will not hold up in court post-Bruen.

Bruen and summary dispositions such as Bianchi are good signs that we are looking at a robust restoration of the Second Amendment. Bills such as H.R. 1808 are expected attempts to push back against the Supreme Court, but thankfully the legislature is not allowed to enact laws that contradict the Constitution. We should expect that Congress (and legislatures in blue states) will continue to pass restrictive firearms laws in an attempt to test or thwart the Supreme Court. But we should also expect, in this post-Bruen world, that we will see courts more willing and able to protect our rights under the Second Amendment.